The perm is better and outweighs the net benefit.
Mendelson 14 – Joseph L. Sax Collegiate Professor of Law at the University of Michigan, J.D. from Yale University.
Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/
Emily Bremer argues that although incorporation by reference “impedes access to the law,” agencies should continue, in view of the value of SDO standards, to incorporate and rely on copyrighted standards, if perhaps more thoughtfully.47 Professors Strauss and Cunningham argue for significantly greater public access, acknowledging that charging for standards interferes with the “kinds of activities American[ ]administrative law has long committed to fully open public notice and participation,”48 although Strauss suggests a class of incorporated materials for which SDOs might still be permitted to charge access fees to defray revenue losses on other IBR standards.49
Whether SDOs continue to possess a valid copyright in standards that a federal agency incorporates by reference is surely an important question that may, among other things, affect the price an agency would have to pay for public access to the standard. And SDOs unquestionably contribute services of value to the regulatory process by crafting standards that agencies wish to incorporate.